Tues. Feb. 9
renvoi
• The primary reason for its existence lies in the fact that
the law-making and law-enforcing agencies of the
country in which land is situated have exclusive control
over such land. As only the courts of that country are
ultimately capable of rendering enforceable judgments
affecting the land, the legislative authorities thereof have
the exclusive power to promulgate the law which shall
regulate its ownership and transfer.…If an instrument
which was intended to transfer that land did not meet
the standards set by that law or violated some provision
thereof regarding the land, the courts had the physical
power to deny it effect and enforce instead the rights
decreed by the law of that country or the law of any
other country which the law-making agencies deemed
appropriate in a particular case.
Circling?
• Section 8. Rule in questions of title to land or divorce.
• (1) All questions of title to land are decided in
accordance with the law of the state where the land
is, including the Conflict of Laws rules of that State.
• (2) All questions concerning the validity of a decree of
divorce are decided in accordance with the law of the
domicile of the parties, including the Conflict of Laws
rules of that State.’
2nd Restatement
Renvoi if
- the objective of the particular choice of law rule is that the
forum reach the same decision as that of another state (on
the same facts)
• Examples:
• validity and effect of transfer of interests in land
• and succession of interests in movables in a decedents estate
Public Policy Exception
Loucks v Standard Oil
(NY 1918)
• “The courts are not free to refuse to enforce a
foreign right at the pleasure of the judges, to suit the
individual notion of expediency or fairness. They do
not close their doors unless help would violate some
fundamental principle of justice, some prevalent
conception of good morals, some deep-rooted
tradition of the common weal.”
Mertz v Mertz (NY 1936)
• Mertz
• “The term ‘public policy’ is frequently used in a very
vague, loose or inaccurate sense. The courts have
often found it necessary to define its juridical
meaning, and have held that a state can have no
public policy except what is to be found in its
Constitution and laws. Therefore, when we speak of
the public policy of the state, we mean the law of the
state, whether found in the Constitution, the statutes
or judicial records.”
Assume that after the dismissal, the action is
brought in Conn.
Can the defendant argue res judicata?
• Mertz – another justification
• “The law of the forum determines the jurisdiction of
the courts, the capacity of the parties to sue or be
sued, the remedies which are available to suitors and
the procedure of the courts. Where a party seeks in
this state enforcement of a cause of action created by
foreign law, he can avail himself only of the remedies
provided by our law, and is subject to their
limitations.”
Holzer v Deutsche Reichsbahn-Gesellschaft
(NY 1938)
Does interest analysis suggest that forum law
should be used as in Mertz?
Should the court have simply dismissed?
German law requires everyone who is fired for
being Jewish to pay for clearing out his office
Deutsche Reichsbahn sues in New York for
costs of cleaning out Holzer’s office
Result?
Compare Kilberg v N’eastern Airlines
- NY P, Mass D, plane accident in Mass
- Ticket brought in NY
- Mass limit on damages for wrongful death
- Suit in NY
- Court characterizes as procedural
- But also refuses to apply limit on PPE
grounds
penal laws
Virginia cases
McMillan v McMillan (Va. 1979)
• § 145. The General Principle
• (1) The rights and liabilities of the parties with respect to an
issue in tort are determined by the local law of the state
which, with respect to that issue, has the most significant
relationship to the occurrence and the parties under the
principles stated in § 6.
• (2) Contacts to be taken into account in applying the principles
of § 6 to determine the law applicable to an issue include:
• (a) the place where the injury occurred,
• (b) the place where the conduct causing the injury occurred,
• (c) the domicil, residence, nationality, place of incorporation
and place of business of the parties, and
• (d) the place where the relationship, if any, between the
parties is centered.
• These contacts are to be evaluated according to their relative
importance with respect to the particular issue.
• § 169. Intra-Family Immunity
• (1) The law selected by application of the rule of § 145 determines
whether one member of a family is immune from tort liability to
another member of the family.
• (2) The applicable law will usually be the local law of the state of the
parties' domicil.
Babcock v. Jackson (NY 1963)
• NY P – guest in car w/ NY D
• Crashed into stone wall in Ontario
• Q of application of Ontario guest statute
• Held Ontario guest statute does not apply
Kell v. Henderson (NY Sup. Ct. 1965)
• Residents of Ontario in NY
• Trip begins and ends in Ontario
• Accident in NY
• Court applied NY law, not Ontario guest statute
JONES v RS JONES & Assoc
(Va. 1993)
95.11. Limitations other than for the recovery of real property
Actions other than for recovery of real property shall be
commenced as follows:
...
(3) Within four years.-(a) An action founded on negligence.
...
(4) Within two years.-..
(d) An action for wrongful death.
...
(g) An action for libel or slander.
(5) Within one year.-(a) An action for specific performance of a contract.
...
We think the limitation contained in Fla.Stat.Ann. §
95.11(4)(d) is directed so specifically to the right of
action provided by the state's wrongful death act as
to warrant saying that the limitation qualifies the
right. Indeed, if the limitation is not so directed, one
is constrained to ask, to what else could it possibly
be pointed? The language, "[a]n action for wrongful
death ... shall be commenced ... [w]ithin two years,"
is, to borrow from Davis v. Mills, "so specific that it
hardly can mean anything else [than a qualification
upon the newly created liability]."
What about Virginia’s two-year statute of
limitations for wrongful death actions…?
Buchanan v. Doe (Va. 1993)
"The forum state applies its own law
to ascertain whether the issue is
one of tort or contract."
“Substantive tort law in West Virginia, as in Virginia,
requires that the plaintiff prove he was injured by
the negligence of the defendant. But there is nothing
in the tort law of either state which requires that
injury be accompanied by physical contact in order
to impose liability on the defendant. Under West
Virginia law, however, in order to recover from an
insurance company under an uninsured motorist
policy, the injured party must prove in the John Doe
tort action that the injury was accompanied by
physical contact. But, for several reasons, we
conclude that this requirement is a matter of
statutory law dealing with insurance contracts.”
“Finally, if we construed the proofof-contact requirement as State
Farm suggests, the scope of a
Virginia insured's UM coverage
would depend upon the UM
statutory provisions of each state in
which a Virginia insured traveled,
contrary to our understanding of
the purpose of UM insurance.”
Perkins v Doe (W. Va. 1986)
- W. Virg’ian gets into accident in Va. (no contact)
- suit brought in fed ct against John Doe
- question certified to W. Va. S.Ct.
- said law of place of harm applied
Lee v. Saliga (W. Va. 1988)
- Pennsylvanian gets into accident in W.Va. (no
contact)
- suit against insurance co. in W. Va ct.
- W. Va. S Ct. held that law of place of contracting
applies
• Concurrence (Lacy)
• “In my opinion, applying West Virginia law to bar a
Virginia resident from establishing the negligence of a
John Doe motorist and recovering under the uninsured
motorist provisions of an automobile liability policy
solely because there was no physical contact between
the vehicles is contrary to a significant public policy of
this Commonwealth, as reflected in a broad range of
Virginia's motor vehicle statutes, rules and regulations.”
• Concurrence (Lacy)
• “To restrict the Virginia insured's recovery against
unknown motorists by imposing the physical contact rule
punishes those drivers who attempt to avoid such contact,
defeating the broader public policy to encourage safe
driving. Applying the rule also places Virginia insureds at
risk from negligent uninsured motorists whenever they
leave the Commonwealth and subjects them to the
requisites for recovery under the uninsured motorist
provisions of each state in which they travel. Thus, they
lose the full contractual benefits of their Virginia insurance
policies, despite Virginia's articulated policy of protecting
Virginia insureds against unknown, uninsured motorists
whose negligence causes them injury.”
• Concurrence (Lacy)
• “Further, if the accident had occurred in Virginia, there would be no
question of Buchanan's right to proceed to establish John Doe's liability
for his injuries. Indeed, if Buchanan had filed suit in West Virginia, based
on the facts before us here, the courts of that state would not have
applied the physical contact rule to bar his action.”